The End Is at the Beginning: Removing the Children from the Commonwealth After Divorce
The soon to be released Netflix drama, “A Marriage Story” tells the tale of Nicole and Charlie Barber (Scarlett Johansson and Adam Driver, respectively), two loving and dedicated parents of their son Henry (Azhry Roberts). Unfortunately for everyone involved, Nicole and Charlie are divorcing. And while initially, their divorce is relatively positive, Nicole wants to move Henry from the couple’s home state of New York and start a new life in California to continue her growing acting career. This causes a spiral of litigation, pain and courtroom dramatics.
While A Marriage Story is fiction, it is based on something that happens in courtrooms around the country every day, as parents struggle over the most sensitive and volatile issue facing divorcing parents: where their child will live. And while every divorce has its pain in dealing with this issue, when you consider that the child could be taken hundreds if not thousands of miles away, you greatly expand the turmoil these cases can cause.
I have not seen A Marriage Story. However, I am confident I would know how it ends if it, in any way, followed Massachusetts law. In a state like Massachusetts, the initial decisions the parties make regarding custody will have a dramatic impact on any removal action sought even years later, and those decisions will have critical importance far into the future.
The Definition of Custody and the “Best Interest” of the Child Test
In Massachusetts, when deciding, during a divorce, where a child should live, courts have used the very familiar “best interest of the child’s” standard; namely that when deciding physical custody, the court will ask what is in the child’s best interest. The 'best interests of the child’ standard is one grounded in the particular needs and circumstances of the individual child in question.' Adoption of Vito, 431 Mass. 550, 566 (2000). Court’s use an array of factors when making this decision including which parent was, traditionally, the child’s primary caretaker prior to the divorce; which parent the child tends to go to when in distress; which parent takes the lead in decisions regarding the child, the parties’ health, the parties stability etc.
However, what do courts do if, after the parties are divorced and the issue of custody has been decided, one party wishes to leave the Commonwealth of Massachusetts for another state (and therefore another jurisdiction)? This happens with regularity in Massachusetts as mobility continues to increase and the standard (and therefore costs) of living in Massachusetts continue to rise. People get jobs that could take them far away or want to move closer to family. However, when one party wants to move its usually unheard of for the other party to want to tag along. Therefore, what happens when one party wants to move with the child to California while the other wants to stay in Massachusetts?
Generally, when a couple divorces, they have some sort of custody arrangement that is adopted by the court and it details which parent will the child live most of the time. That arrangement is usually either a) the parties have shared, or “joint,” physical custody of the child and the child spends (more or less) equal time with each parent or b) one parent has primary physical custody of the child with parenting time to the other. The latter is the more traditional method of post-divorce living wherein the child spends most of the time with one parent and then has parenting time (formerly “visitation”) with the other on weekends or certain evenings. While joint physical custody has become more popular over the years, primary physical custody with one parent is still more prevalent.
In order to move a child to another state, a party would need to file a Complaint for Removal or a Complaint for Modification stating the reasons for the need to move. Generally, courts will only allow a party to change the parenting plan if there has been a material change in circumstances. This is to protect the parenting rights of the other parent. If the court does allow a child to be removed from the Commonwealth it can – and usually does – greatly change the child’s relationship with both parents. If a parent saw their child once every weekend for two days while the child lived two towns away, their parenting time with the child will be extremely altered if that child now lives two time-zones away.
Removal in a Joint Custody Case
When two parents share joint physical custody, a child cannot be removed unless it is in the best interests of the child. Shared physical custody "contemplates that ‘a child shall have periods of residing with and being under the supervision of each parent assuring frequent and continued contact with both parents.’ Mason v. Coleman 447 Mass. 177 (2006). Shared physical custody, in particular, carries with it a substantial obligation for cooperation between the parents. Such an arrangement, by its nature, involves shared commitment to coordinate extensively a variety of the details of everyday life. E.E. Maccoby & R.H. Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody 217-227 (1992). Shared physical custody necessitates ongoing joint scheduling and provision for supervision and transportation of children between homes, schools, and youth activities. In determining a child's best interests, consideration must be given to whether the quality of the child's life may be improved by the change, the possible adverse effect of the elimination or curtailment of the child's association with the non-moving parent, and the extent to which moving or not moving will affect the emotional, physical, or developmental needs of the child. In addition, the interests of the non-moving parent must be considered. Yannas v. Frondistou-Yannas (395 Mass 704 (1985))
In other words, if the parties share joint physical custody of their child, then before the court will allow one of them to move to another state (thus severing the joint custody arrangement) the party seeking removal must show that it’s in the child’s best interest to move. Conversely, the non-moving parent can enter evidence showing that by removing the child from the Commonwealth it would have a negative impact on that parent’s relationship with the child and would, therefore, be grounds for not removing the child. Generally speaking, if the parties have shared/joint legal custody, then removing the child from the Commonwealth is a very hard burden to meet and courts are not apt to simply allow it. If the parties cannot agree then they must press their case at trial and the burden of proof will be on the parent seeking the removal to show why the move is in the child’s best interest.
Removal in Sole or Primary Custody Cases
While the standards for removal in a joint custody case are, justifiably, daunting, the "calculus pertaining to removal is appreciably different" in situations where one parent has primary physical custody. Mason v. Coleman , 447 Mass 177, 184 (2006). In cases where one party has primary or sole physical custody of a child the standard is governed by the case of Yannas v. Frondistou-Yannas (395 Mass 704 (1985)) and is a remarkably lower standard.
In Yannas v. Frondistou-Yannas, the Supreme Judicial Court adopted the "real advantage" standard, which recognizes that, after a divorce, a child's subsequent relationship with both parents can never be the same as before the divorce and that the child's quality of life is provided by and is "interwoven with the well-being of the custodial parent." Yannas 395 Mass. at 710. For this reason, Yannas states, "the first consideration" in determining whether the child's best interests are served, "is whether there is a good reason for the move, a 'real advantage.' If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction…” then the court is almost certainly going to allow such removal. The “advantage” here is not an advantage enjoyed by the child, but instead, is one sought by the custodial parent. This ‘advantage’ may be economic (such as a new job); it may be support of family residing in another jurisdiction (ie: the custodial parent has close family in the new state); or it may be any other "good, sincere reason for wanting to remove" (ie: “Common sense demonstrates that there is a benefit to a child is being cared for by a custodial parent who is fulfilled and happy rather than by one who is frustrated and angry.” See Pizzino v. Miller, 67 Mass. App. Ct. 865, 870 (2006)). Most critically, however, unlike in a joint custody case where the child’s relationship with the non-moving parent will be considered, here, where one party already has primary physical custody, the child’s relationship with the non-custodial parent will be given far less weight. Hence, removal of a child from the Commonwealth is far easier in a case where one party has already established primary physical custody, and it will usually be granted. While there is nuance and appreciable case-law that may seem to support the rights of the non-custodial parent, practically speaking, once physical custody has been determined it is the most controlling and most critical factor and courts will rarely look beyond that factor.
A reader may ask “Well, what happened to the ‘best interest of the child?” And the court’s response is that "[B]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the custodial parent be taken into account." Yannas, 395 Mass. at 710, 481 N.E.2d 1153, quoting from Cooper v. Cooper, 99 N.J. 42, 54, 491 A.2d 606 (1984). Again, practically speaking, once the custodial parent has articulated that they would enjoy a “real advantage” in leaving the Commonwealth, they will almost always be allowed to bring the child with them.
The End is at the Beginning
When parties are first divorced, the most important and most critical decisions are being made- what will happen to the house? Where will the children live? Who will pay for college? And invariably the issue of “custody” is brought up and arguments ensue about which party should have physical custody. When the parties finally make that faithful decision, it ripples into the future. And the decision as to physical custody made when the parties are first divorced is almost always controlling and dispositive upon those parties when deciding on removing the child from the Commonwealth later. If the parties agreed on shared physical custody, then removal from the Commonwealth will be extremely difficult. Conversely, if at the time they were divorced, the parties had one parent enjoy primary physical custody then removal will be far easier. Therefore, it is imperative for parties going through a divorce to pay careful attention to physical custody of the children if there is any chance the final custodial parent could try, even years later, to remove the children from the Commonwealth.